In The Courts

Hobby Lobby Recrafts the Definition of Abortion

By Elizabeth Kuhr

WeNews correspondent

Thursday, July 31, 2014

A Supreme Court footnote acknowledges the difference between the victorious plaintiffs and the Food and Drug Administration on what constitutes abortion. Will other birth controls interfere with closely-held corporations' religious beliefs too?

NEW YORK (WOMENSENEWS)--Last month's controversial Supreme Court opinion in the Hobby Lobby case was widely noted for the court's first recognition that a for-profit venture's religious belief could trump existing federal law.

It also contained a little-noticed footnote that may have significant reverberations for women's access to birth control.

In that footnote the Court reviews the company's definition of abortion, noting that while it is inconsistent with federal law it must be respected. "Respondents refer to the drugs and devices to which they object as 'abortifacients,'" the note says. "And their religious view of what constitutes abortion is of course entitled to respect." The Court goes on to cite the Institute of Medicine as saying "one benefit of access to all FDA-approved contraceptives is that they reduce the incidence of abortion."

Even though the beliefs of Hobby Lobby's owners conflicted with federal law, the High Court nonetheless used them as the basis for deciding that closely held corporations' owners, such as Hobby Lobby, could be exempt from covering employees' contraceptives.

In the case of Burwell v. Hobby Lobby, plaintiffs and owners of Hobby Lobby, David and Barbara Green, said that four contraceptives--two morning-after pills and two intrauterine devices--prevent a fertilized egg from implanting in a uterine wall and are therefore abortifacients, or drugs that cause abortions.

"[The plaintiffs] are trying to define an abortion as something that happens before pregnancy," said Jessica Arons, president and CEO of Reproductive Health Technologies Project, a Washington-based nonprofit working to improve access to safe and effective birth control methods, in a phone interview. "You can't have an abortion until you're pregnant."

Pregnancy is only medically detectable after a fertilized egg implants in the uterine lining, a process that can take several days, said Arons. "It really is a shocking deviation from the precedent" that for-profit corporations can exert religious liberty over employees, she said, "and a disregard of women's rights and health needs."

1993 Religious Act Invoked

In objecting to the so-called contraceptive mandate of the Affordable Care Act, which requires that the costs of these birth controls be covered by health insurers, the owners of Hobby Lobby, an arts and crafts store chain based in Oklahoma City, invoked the 1993 Religious Freedom Restoration Act. The Green family said that providing such contraception to employees would interfere with their religious practice and beliefs against abortions.

"Courts are barred from assessing whether claimed religious beliefs are true, sensible or logical, even when those beliefs fly in the face of widely accepted science," said Daniel Mach, director of the American Civil Liberties Union's Freedom of Religion and Belief program, in a phone interview.

People have the right to publically express their beliefs according to the First Amendment, said Mach, but he does not believe employers have the right to impose those beliefs on employees. Referring to the Hobby Lobby case, he added, "The court has said that employers can use their religious beliefs to deny their employees benefits that they're guaranteed to receive by law."

Although the decision was narrowly focused on closely held corporations, some fear its reach into women's medicine cabinets.

Julie Gonen, director of government relations at the New York-based Center for Reproductive Rights, said the Supreme Court's written opinion suggests that corporations can also opt out of the other 16 types of birth controls that the new health law requires corporations cover.

"The decision seems to reinforce the notion that women's reproductive health care is in some special category," said Gonen. "The justices gave no rational why a boss could deny [one type of] health care but not other kinds."

Birth Control Already Approved

All four of the contraceptive methods that the Green family's company will no longer include in its employees' insurance coverage are on the FDA's approved list of birth controls, and the agency defines none of them as terminating pregnancies.

The hormonal morning-after pills Plan B and Ella work "mainly by stopping the release of an egg from the ovary" and may prevent an egg's fertilization and implantation, says the FDA's website.

Arons said the FDA site is outdated. Plan B and Ella probably stop ovulation and fertilization from happening, but the medicines have "no post-ovulatory effect, they don't interfere with implantation." The FDA did not respond to requests for comment in time for this article's publication.

The hormone-free Copper IUD prevents sperm from reaching the egg and may halt implantation and the Progestin IUD, which releases hormones, thickens the cervical mucus to prevent sperm from contacting the egg.

The Becket Fund for Religious Liberty, the public interest law firm located in Washington, D.C., that defended Hobby Lobby, refused to comment.

On its website, the law firm says the Green family wishes not to "provide or pay for four potentially life-threatening drugs and devices" and that "covering these drugs and devices would violate their deeply held religious belief that life begins at the moment of conception, when an egg is fertilized."

Elizabeth Kuhr is an editorial intern with Women's eNews. Follow her on Twitter: @elizabeth_kuhr.